Since the entry into force on 1 November 2018 of the law of 27 June 2018 establishing the family judge (juge aux affaires familiales) and reforming the divorce and parental authority, there are only two forms of divorces in Luxembourg: divorce by mutual consent and divorce due to irretrievable breakdown of the marital relationship.
Mutual consent
Divorce by mutual consent can be applied by both spouses jointly when they agree on the breakdown of the marriage and its consequences. The procedure involves several stages. If there is any property to be divided, a notary has to draw up an inventory and estimate its value. The spouses are then free to settle their respective rights to the property concerned. In addition, they must agree on several points. Where will they live during the divorce proceedings – remain residing in Luxembourg or live out of the country? What are the arrangements for their children during and after the proceedings? What is the contribution that each spouse will make to the upbringing and maintenance of the children? What is the amount of any maintenance payments that one spouse will make to the other? This agreement must be in the form of a document (convention) drawn up by a lawyer or a notary.
The case is brought before the district court through a joint application filed by both spouses with the registry. A lawyer is not required to bring the case before the court. Instruments and documents that are submitted with the application and that the spouses intend to use must be legalised, where applicable, when they are issued by a foreign public authority. The spouses are then heard personally by the family judge, who checks the real will of each spouse and their free and informed consent to the agreement. In principle, only one appearance is necessary.
The family judge must approve the agreement. The approved agreement forms an integral part of the divorce judgement. The judge may not accept the agreement if he considers that it is not in the best interests of the children and that it has a clearly disproportionate adverse effect on the interests of one of the spouses. In this case, he asks the spouses to amend the agreement and to appear again with the modified agreement.
Irretrievable breakdown of the marital relationship
Divorce due to irretrievable breakdown of the marital relationship can be applied by one of the spouses or by both spouses jointly when there is an agreement on the principle of the divorce but not on all its consequences. The case is brought before the district court through an application filed with the registry. A lawyer is required to bring the case before the court.
The spouses are then heard personally by the family judge in the presence of their respective lawyers. If the spouses agree on the principle of the divorce but not on all its consequences, the family judge tries to get the spouses to reach an amicable settlement. If one of the spouses does not want to divorce, the judge may grant a delay to the spouses in order to allow them to reconcile. The period cannot be longer than three months and is renewable once. If, after this period, the application for divorce is maintained by the spouse, the divorce will be granted.
Legal separation
Legal separation loosens the marital ties but not dissolves them: the spouses no longer have to live together, but they continue to have duties of fidelity and support towards one another. The grounds of legal separation are identical to those for divorce due to irretrievable breakdown of the marital relationship. If the legal separation has lasted for three years, either spouse may apply to the court for a divorce. The court grants the divorce if the other spouse does not immediately agree to end the separation.
Is it possible to appeal a divorce?
Yes, it is possible to appeal against a decision relating to divorce or legal separation. In principle, the time limit for an appeal is 40 days, but this may be extended if the applicant lives abroad. The competent court for any appeal is the Supreme Court of Justice (Cour supérieure de Justice).
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